Carolyn Bair
Austin, Individually and as Personal Representative of the Estate of Robert
Jacob Bair, deceased, Appellant,

v.

Beaufort County Sheriff's Office, Respondent.

Appeal From Beaufort County
John C. Few, Circuit Court Judge

Opinion No. 26452
Heard February 6, 2008 - Filed March 10,
2008

AFFIRMED

M.
Adam Gess, of McDaniel & Gess, of Beaufort, Mark Weston Hardee, of the
Hardee Law Firm, of Columbia, and Robert E. Austin, Jr., of Robert E. Austin,
Jr., Law Offices, of Leesburg, Florida, for Appellant.

Marshall
H. Waldron, Jr., of Bluffton, for Respondent.

JUSTICE WALLER: This is a
direct appeal from the trial court’s order which granted summary judgment in
favor of respondent, Beaufort County Sheriff’s Office (the Sheriff’s Office).
We affirm.

FACTS

On July 25, 2001, Robert Bair, the adult son of appellant Carolyn
Bair Austin, was found dead in his neighbor’s garage at a condominium complex
in Hilton Head. The Sheriff’s Office began an investigation into his death and
collected the following items from the scene: three blood swabs, one syringe,
some green leafy vegetable matter,[1] and a white rock substance, which field tested positive for cocaine. In
addition to this evidence, the Sheriff’s Office submitted four envelopes
containing photographs.

The
cause of Bair’s death was determined to be an illegal drug overdose. In July
2002, the Sheriff’s Office destroyed the items of evidence. In July 2004,
appellant’s attorney discovered that the evidence, as well as related reports,
had been destroyed. Appellant filed an action against the Sheriff’s Office
claiming she is entitled to damages because the destruction of evidence
impaired her ability to bring a wrongful death action.[2] In an amended complaint, appellant
explained her theory regarding Bair’s death as follows: “On July 25, 2001,
decedent was assaulted by unknown assailants who inflicted bodily injuries and
a fatal dose of drugs on decedent.”

The
Sheriff’s Office moved for summary judgment. Appellant moved for a continuance
in order to conduct additional discovery. The trial court granted summary
judgment for the Sheriff’s Office.

ISSUE

Did the trial court err in granting summary judgment?

DISCUSSION

Appellant urges this Court to adopt the tort of third party
spoliation of evidence and allow the case to further proceed through the
discovery phase. Specifically, she argues we should recognize the spoliation
tort as outlined by West Virginia in Hannah
v. Heeter, 584 S.E.2d 560 (W.Va. 2003). Under the facts of this case, we
decline to do so.

This
Court reviews the grant of a summary judgment motion under the same
standard as the trial court, pursuant to Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. E.g., Burriss v. Anderson County Bd. of Educ., 369 S.C. 443, 633 S.E.2d 482 (2006); Dawkins v. Fields,
354 S.C. 58, 580 S.E.2d 433 (2003). The
purpose of summary judgment is to expedite disposition of cases which do not
require the services of a fact finder. George v. Fabri, 345 S.C.
440, 548 S.E.2d 868 (2001).

In Hannah,
the Supreme Court of Appeals of West Virginia recognized two “stand-alone
torts” regarding spoliation of evidence: (1) negligent spoliation of
evidence by a third party; and (2) intentional spoliation of evidence by
either a party to the civil action or a third party.[3]

Regarding negligent
spoliation by a third party, the Hannah court held that the tort had the
following elements:

(1) the
existence of a pending or potential civil action;

(2) the
alleged spoliator had actual knowledge of the pending or potential civil action;

(3) a
duty to preserve evidence arising from a contract, agreement, statute,
administrative rule, voluntary assumption of duty, or other special
circumstances;

(4)
spoliation of the evidence;

(5) the
spoliated evidence was vital to a party’s ability to prevail in a pending or
potential civil action; and

(6)
damages.

Hannah, 584 S.E.2d at 569-70.

As for the tort of intentional spoliation of evidence, the Hannah court listed similar elements:

(1) a
pending or potential civil action;

(2)
knowledge of the spoliator of the pending or potential civil action;

(3)
willful destruction of evidence;

(4) the
spoliated evidence was vital to a party’s ability to prevail in the pending or
potential civil action;

(5) the
intent of the spoliator to defeat a party’s ability to prevail in the pending
or potential civil action;

(6) the
party’s inability to prevail in the civil action; and

(7)
damages.

Hannah, 584 S.E.2d at 573.

Under the
particular facts of the instant case, it is clear that appellant’s allegations
do not rise to the level of stating a claim. First, although appellant
contends there is a potential wrongful death action, no tortfeasor has been
identified, beyond the “unknown assailants” mentioned in the complaint.
Therefore, it is merely speculative that a potential civil action for wrongful
death exists. Second, it obviously follows that the Sheriff’s Office, could
not have actually known of the potentiality of a lawsuit, especially given the
fact that the Sheriff’s Office apparently concluded that Bair’s drug overdose
had been self-inflicted. Certainly, appellant never notified the Sheriff’s
Office of the fact that she sought to pursue a civil lawsuit related to her
son’s death.

Third, appellant
can point to no specific duty that the Sheriff’s Office was required to
preserve this evidence. We have held in a criminal case that the State has no
absolute duty to preserve potentially useful evidence that might exonerate a
defendant. SeeState v. Cheeseboro, 346 S.C. 526, 538-39, 552 S.E.2d
300, 307 (2001). Clearly, then, under the facts of the instant case, there
was no general duty to preserve evidence after the police had terminated a
criminal investigation.

Finally, because of
the speculative nature regarding the value of the evidence destroyed, appellant
is simply unable to establish that the destroyed evidence was vital to her
ability to prevail in the potential civil action.

Accordingly,
even using the tort elements set out by the Hannah court as urged by appellant,
no claim for third party spoliation of evidence has been alleged. Thus, we
decline to address whether we would, under other factual circumstances, adopt
the tort of third party spoliation of evidence. The grant of summary judgment
in favor of the Sheriff’s Office is